Under the China Patent Law, the right to apply for a patent depends on whether the invention is a "service invention-creation" or a "non-service invention creation." If an invention stems from tasks performed in the course of service to a particular entity, the invention is a service invention-creation. This rule also applies to invention-creations created within one year of resignation, retirement or change of work, if the invention-creation relates to previous tasks performed for the entity.
In these circumstances, the right to apply for the patent belongs to the entity, although the inventor creator has a right to be listed as such on the patent document. The inventor-creator of a service invention creation is also entitled to a reasonable reward to the extent the patent generates an economic benefit for the entity. However, the China Patent Law does state that an agreement between an employer and employee concerning patent rights will prevail over the default rules.
For a non-service invention creation, the right to apply for a patent belongs to the inventor or creator. If a patent is granted, the inventor is the patentee. Furthermore no entity or individual can prevent an inventor from filing an application for a non-service invention.
For an invention-creation jointly made by two or more entities or individuals, or made by an entity or individual in execution of a commission for another entity or individual, the right to apply for a patent belongs, unless otherwise agreed upon, to the entity or individual which made, or to the entities or individual which jointly made, the invention-creation. After the application is approved, the entity or individual that applied for it shall be the patentee.
Finally, a note on agency. Under the China Patent Law, any foreigner, foreign enterprise or other foreign organization that does not have a habitual residence or business office in
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